LEGAL - ipa.org.au · Legal Rights Audit 2018 3 About the Institute of Public Affairs The Institute...

LEGAL RIGHTSAUDIT 2018

Anis Rezae, Research InternMorgan Begg, Research Fellow

December 2018

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3Legal Rights Audit 2018

About the Institute of Public Affairs

The Institute of Public Affairs is an independent, non-profit public policy think tank, dedicated to preserving and strengthening the foundations of economic and political freedom.

Since 1943, the IPA has been at the forefront of the political and policy debate, defining the contemporary political landscape.

The IPA is funded by individual memberships and subscriptions, as well as philanthropic and corporate donors.

The IPA supports the free market of ideas, the free flow of capital, a limited and efficient government, evidence-based public policy, the rule of law, and representative democracy. Throughout human history, these ideas have proven themselves to be the most dynamic, liberating and exciting. Our researchers apply these ideas to the public policy questions which matter today.

About the authors

Morgan Begg is a Research Fellow at the Institute of Public Affairs. He specialises in legal rights, freedom of speech and religion, the rule of law, and the constitution and constitutional issues. Morgan has authored research papers on the GST and federalism, red tape and centralisation, religious liberty, and section 18C.

Anis Rezae is a Research Intern at the Institute of Public Affairs. Anis studied for a Bachelor of Commerce and obtained Honours in Economics at the University of Western Australia. Currently she is studying Juris Doctor and is a 2018 Mannkal Economic Education Foundation scholar.

LEGAL RIGHTS AUDIT 2018

4 Institute of Public Affairs www.ipa.org.au

Executive summaryThis report illustrates the ongoing erosion of legal rights that persists in Australia. This has been measured by an analysis of the content of all legislation passed by the federal parliament in 2018.

Our research is an audit of Commonwealth legislation passed in 2018, building on research the Institute of Public Affairs began in 2014.1 The IPA’s 2014 report The State of Fundamental Legal Rights in Australia found 262 provisions which breach fundamental legal rights. That report focussed on the extent to which four such fundamental legal rights are abrogated in current acts of the federal parliament:

1. The presumption of innocence and burden of proof;2. Natural justice;3. The right to silence;4. Privilege against self-incrimination.

Updates to that research published by the Institute of Public Affairs in April 2016, February 2017, and December 2017 found there had been a net increase in the number of breaches in federal legislation passed in each year since 2014, with 324 provisions found at the end of 2017.

This update includes all legislation passed by the Commonwealth parliament in 2018. In total, our research has identified 34 new provisions that breach fundamental legal rights in legislation passed in 2018. None were repealed.

Legal right Breaches at end of 2017

Breaches added in 2018

Breaches repealed

Breaches at end of 2018

Burden of proof 55 3 0 58

Natural justice 94 4 0 98

Right to silence 50 15 0 65

Privilege against self-incrimination

125 12 0 137

TOTAL 324 34 0 358

The continued failure of successive governments to maintain legal rights threatens the capacity of our legal system to produce just outcomes.

This report makes two recommendations:

1. All current provisions that breach fundamental legal rights must be repealed; and2. Legislators of all political stripes should commit to a greater level of respect for the

principles of the rule of law and refuse to pass laws that breach our fundamental legal rights.

1 Simon Breheny and Morgan Begg, ‘The state of fundamental legal rights in Australia’ (Occasional Paper, Institute of Public Affairs, 2014).


Contents

Executive summary 4

Introduction 6

The presumption of innocence and burden of proof 8

Natural justice 9

Right to silence 10

The privilege against self-incrimination 11

Legal rights breaches by year 12

Legal rights breaches by category 13

Conclusion 15

Appendix 1 – Provisions that breach fundamental legal rights in 2018 legislation 16


IntroductionThe rapid growth of the size and scope of government in the twentieth century, and the emergence of the “regulatory state” or “administrative state” following a period of microeconomic reforms in the 1980s and 1980s has resulted in persistent regulatory growth.2 In 2018, the Commonwealth parliament passed 5,955 pages of legislation, is just above the annual average of pages passed from 2008 to 2017 (5,807 pages per year) and is in significant contrast to the average of 469 pages passed each year between 1901 and 1969.

Corresponding to this increase in regulatory activity is an abundance of regulatory agencies to administer the new laws. Institute of Public Affairs research from 2016 estimated that as at April 2016, the federal government maintained 1,181 entities, bodies, and administrative relationships. Of these, 497 were estimated to be involved in policy design or enforcement of the federal regulatory system.3

However, as Dr Chris Berg, Postdoctoral Fellow at RMIT University and an Adjunct Fellow with the Institute of Public Affairs, explained in 2013, the regulatory state describes a broader phenomenon in government than regulatory growth. The fragmentation of institutions and bureaucracies have developed into a network interests competing for funds, public attention, and the attention of parliament. Independent regulatory agencies have been delegated broad regulatory powers but have little formal accountability or oversight.4 As Professor Richard Epstein from New York University Law School observes, “the administrative state gives rise to a peculiar blend of bureaucratic rule and discretion that does not comport with the historical conception of a rule of law”.5

Perhaps as a consequence of the sheer volume of law the government is required to administer, the government has demonstrated a greater preference for administrative convenience over the inefficiency of respecting fundamental legal rights, such as the principles of natural justice and the right to silence. Convenience should never be an objective of prosecutors and regulators. As the IPA noted in The State of Fundamental Legal Rights in Australia in 2014 (the “2014 audit”), “the common law legal system is ideal not for the ease with which it allows for prosecutions, but for the protections it offers against an overbearing state.”6

2 See Chris Berg, ‘The Growth of Australia’s Regulatory State: Ideology, Accountability, and the Mega-Regulators’ (Institute of Public Affairs, 2008).

3 Mikayla Novak, ‘The Red Tape State’ (Institute of Public Affairs, Research paper, 2016).

4 Chris Berg, ‘The Biggest Vested Interest of all: How Government Lobbies to Restrict Individual Rights and Freedoms’ (Institute of Public Affairs, 2013) 6.

5 Richard Epstein, ‘Why the Modern Administrative State is Inconsistent with the Rule of Law’ (2008) 3 NYU Journal of Law & Liberty 491, 495.

6 Breheny & Begg, above n 1, 7.


Fundamental legal rights are necessary to achieve justice within the legal system, and act as a vital constraint on the coercive power of the state. The “2014 audit”, and updated audits of federal laws passed in 2015, 2016, and 2017 (the “2015 audit”, “2016 audit”, and “2017 audit” respectively) revealed the extent that fundamental legal rights – the burden of proof, natural justice, the right to silence and the privilege against self-incrimination – is undermined in current federal legislation.

This report builds on the abovementioned reports by analysing the results of an audit of all legislation passed in 2018.

The list of legal rights breaches found in the 2014, 2015, 2016, and 2017 audits have also been reassessed to determine which breaches have since been repealed. From this, we have developed a net figure for legal rights breaches in current federal legislation up to the end of 2018.

The results can be observed in the table below:



Breaches repealed






125 12 0 137

TOTAL 324 34 0 358

This report is divided into five main chapters. The first four cover the state of each of the above-mentioned legal rights separately. The fifth presents an overall picture of the state of legal rights in under federal law, including an analysis of the areas which are more affected by laws which affect legal rights. Appendix 1 details the provisions that breached one of the four fundamental legal rights.


The presumption of innocence and burden of proofThe burden of proof is a duty placed on the party that initiates legal proceedings to establish their case.7 In 2014 we discussed why this is so important:

Strict rules governing the burden of proof lie at the heart of any just legal system. This principle cannot be underestimated in its importance, as it supports the vital legal principle of the presumption of innocence.8

Difficulties associated with proving elements of an offence or civil remedy are not a sufficient justification for reversing the burden of proof. As we also outlined in 2014:

The common law legal system is ideal not for the ease with which it allows for prosecution, but for the protections it offers against an overbearing state.9

Our research found that in 2018, three provisions were added to the 55 extant federal laws that reversed the onus of proof.



Breaches repealed



The chart below shows when all provisions that reverse the onus of proof, currently in federal legislation, were introduced. 2018 is highlighted in red.

Chart 1: Onus of proof breaches in current legislation, by year

Source: IPA

7 Albert Kiralfy, The Burden of Proof (Professional Books Ltd, 1987) 12.

8 Breheny and Begg, 5.

9 Breheny and Begg, 7.


Natural justiceThe second category of legal rights we have analysed are the principles of natural justice. This encompasses procedural fairness and the right to judicial review. Of procedural fairness, the Australian Law Reform Commission noted in a 2015 report into traditional rights and freedoms that:

A fair procedure for decision making is an important component of the rule of law. The common law recognises a duty to accord a person procedural fairness – a term often used interchangeably with natural justice – before a decision that affects them is made.10

Associated with this is the right to challenge administrative decisions in Australian courts:

Access to the courts to challenge administrative action is an important common law right. Judicial review of administrative action is about setting the boundaries of government power. It is about ensuring government officials obey the law and act within their prescribed powers.11

Our research has found that in 2018, four laws that limit the principles of natural justice were passed.



Breaches repealed



The chart below shows when all provisions that limit the principles of natural justice, currently in federal legislation, were introduced. 2018 is highlighted in red.

Chart 2: Natural justice breaches in current law, by year

Source: IPA

10 Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, Report No 129 (2015) 391-2.

11 Ibid 413.


Right to silenceThe third legal right we have researched is the right to silence. In 2014, we discussed its importance:

The right to silence is a fundamental freedom that has been a feature of the common law for centuries. Just as with so many of our freedoms, this right is also under attack. The right to silence grants an accused the ability to refuse to comment on any allegations and accusations. Just as with the burden of proof, the onus is on the prosecution to establish your guilt and produce any testimony or evidence that establishes that fact.12

Our research has found 15 provisions that remove the right to silence were added in 2018.



Breaches repealed



Below is a chart displaying when each current provision that removes the right to silence in federal legislation was introduced. 2017 is highlighted in red.

Chart 3: Right to silence breaches in current legislation, by year

Source: IPA

12 Breheny & Begg (2014) 18.


The privilege against self-incriminationThe privilege against self-incrimination is a right that evolved from the right to silence, but is also a fundamental protection in its own right. More than a mere rule of evidence, it is deeply engrained in the common law.13 The Australian Law Reform Commission summarised the privilege in 2015:

The privilege against self-incrimination allows a person to refuse to answer any question, or produce any document or thing, if doing so would tend to expose the person to conviction for a crime. Many Commonwealth statutes provide coercive information-gathering and investigation powers to Commonwealth agencies, and many of these statutes abrogate the privilege against self-incrimination.14

According to our research, the federal parliament introduced 12 provisions that restricted the privilege against self-incrimination in 2018.



Breaches repealed



125 12 0 137

Below is a chart which displays when each current provision that restricts the privilege against self-incrimination was introduced.

Chart 4: Privilege against self-incrimination breaches in current legislation, by year

Source: IPA

13 Sorby v Commonwealth (1983) 152 CLR 281, 288.

14 Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, Report No 129 (2015) 18.


Legal rights breaches by yearThese annual audits intend to do two things: to analyse what legislative changes occurred in each year that impact particular legal rights, and to create a snapshot of total legal rights breaches at the end of each year.

The graph below is a representation of the years in which legal rights breaches contained in current federal legislation were introduced, up to and including 2018. It also highlights the government that was in power at the time of each of those breaches.

Chart 5: Legal rights breaches in current legislation, by year

Source: IPA

Chart 5 outlines the governments responsible for introducing the extant legislative provisions that affect fundamental legal rights at the time of the publication of this audit. While the data appears to indicate an upward trend over time, we explained in the 2014 audit that this is not necessarily proof of such a trend:

Our research … highlights the year in which current legal rights breaches were passed. In terms of the government that was in power at the time these provisions were made law, this can be understood as that government’s legacy of legal rights breaches as the law stands today.15

The upward trend may in part be attributable to the natural process of legislative renewal. Over time, existing laws are rewritten with provisions being replaced in a similar form in the same piece of legislation.

15 Breheny & Begg (2014) 29.


Legal rights breaches by categoryIn 2018, provisions undermining fundamental legal rights were most prevalent in the areas of taxation and finance and defence and national security.

Category Breaches pre-2017

Net change in 2017 Total

Taxation and finance 38 +10 48

Courts and law enforcement 37 +4 41

Trade and commerce 38 0 38

Defence and national security 28 +5 33

Illicit substances 28 0 28

Environment 26 +2 26

Employment and discrimination 24 +4 24

Health and sport 16 +2 18

Grants and social services 14 +4 18

Immigration 16 0 16

Media and communication 11 +1 12

Governance & administration 10 +3 10

Transport, aviation and maritime 7 +2 9

Property 7 +2 9

Education 8 0 8

Customs 5 +3 8

Electoral matters 3 +1 4

Foreign Affairs 3 0 3

Primary industries 3 0 3

Not for profits 2 0 2

Minerals & resources 2 0 2


The chart below represents these categories as they stand at the end of 2017.

Chart 6: Legal rights breaches in current legislation, by category

Source: IPA


ConclusionThe IPA’s series of audits, beginning in 2014 demonstrate that traditional legal rights are being persistently undermined in federal legislation. This audit highlights that after a period of slowing growth, the increase in legal rights breaches increased sharply in 2018.

This update, as well as our previous audits, also provides the authoritative blueprint for reform, highlighting precisely where the problem areas are, and how the situation can be remedied.

In order to protect our liberties and to achieve just outcomes, we must be vigilant in safeguarding these rights. The extent to which basic legal rights are being eroded poses a significant threat to the rule of law in Australia.


Appendix 1 – Provisions that breach fundamental legal rights in 2018 legislation

Provisions that reverse the burden of proof and the presumption

LegislationKey word(s) searched

Relevant section Category

Copyright Amendment (Online Infringement) Act 2018

“presumed” Inserts subsection 115A(5A) into the Copyright Act 1968

Commun- ications

Description: For the purposes of the proceedings to grant an injunction against carriage service providers providing access to online locations outside Australia, the online location is presumed to be outside Australia unless the contrary is established.

Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018

“presumed” Inserts section 4AA into the Commonwealth Electoral Act 1918

Electoral matters

Description: This amendment regulates expenditure incurred by a person or entity for the dominant purpose of creating or communicating electoral matter. The dominant purpose of a communication or intended communication of matter that expressly promotes or opposes a political entity or a member of federal parliament (to the extent that the matter relates to a federal election) is presumed to be for the purpose of influencing electors in an election unless the contrary is proved.

National Redress Scheme for Institutional Child Sexual Abuse Act 2018

“bears a legal burden”

Section 171 Recovery of amounts from financial institutions

Courts and law enforcement

Description: Section 171(2) provides the National Redress Scheme Operator may give a written notice to a financial institution requiring it to make payment to the Commonwealth defined by section 171(1). Section 171(4) places a legal burden on a defendant to prove that it is incapable of complying with the notice.

Total number of Acts 3 Total number of provisions 3


Provisions that limit natural justice



Counter-Terrorism Legislation Amendment Act (No. 1) 2018

Adds subsection (daba) to schedule 1 of the Administrative Decisions (Judicial Review) Act 1977

Defence and national security

Description: This amendment adds decisions of senior Australian Federal Police members in relation to consent for the purposes of applications to vary interim control orders under section 14.11A of the Criminal Code to the list of classes of decisions excluded from judicial review under the ADJR Act.

Foreign Influence Transparency Scheme Act 2018

“procedural fairness”

Section 14G Requirements in relation to procedural fairness


Description: The secretary is not required to observe any requirements of procedural fairness in exercising a power or performing a function under Division 3 of Part 1 of the Foreign Influence Transparency Scheme Act 2018 other than those set out in section 14C.

National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Act 2018

Adds subsection (zg) into schedule 1 of the Administrative Decisions (Judicial Review) Act 1977


Description: This amendment adds decisions made under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 to the list of classes of decisions excluded from judicial review under the ADJR Act.

Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Act 2018

Adds subsection (hba) into schedule 1 of the Administrative Decisions (Judicial Review) Act 1977

Taxation and finance

Description: This amendment adds determinations made under the Australian Financial Complaints Authority scheme within the meaning of chapter 7 of the Corporations Act 2001 to the list of classes of decisions excluded from judicial review under the ADJR Act.



Provisions that restrict the right to silence

Legislation Key word(s) searched Relevant section Category

Crimes Legislation Amendment (International Crime Cooperation and Others Measures) Act 2018

“fails to comply”

Inserts section 40AM into the International War Crimes Tribunal Act 1995Failing to comply with a notice


Description: A person commits an offence for failing to comply with a notice under section 40AH of the Act.

Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018


Inserts section 62ZOI into the Insurance Act 1973APRA may require a person to give information etc for the purposes of this Division


Description: When APRA takes control of or appoints an administrator to a general insurer’s business, a person who is required to give to APRA or the administrator relating to the body corporate commits an offence under section 62ZOI(4) if they fail to comply with the requirement.

“refuses or fails to give the information”

Inserts section 179AI into the Life Insurance Act 1995 APRA may require a person to give information etc for the purposes of this Division


Description: When APRA takes control of or appoints an administrator to a life insurer’s business, a person who is required to give to APRA or the administrator relating to the body corporate commits an offence under section 179AI(4) if they fail to comply with the requirement.

Foreign influence Transparency Scheme Act 2018


Section 59Failure to comply with notice requiring information


Description: A person commits n offence if the person is given a notice under sections 45 or 46 to give information or produce documents to the Secretary and fails to comply with the notice to do so.

Imported Food Control Amendment Act 2018


Inserts section 34A into the Imported Food Control Act 1992

Customs

Description: A person commits an offence if the Secretary believes on reasonable grounds that the person has information or documents relevant to the operation of the Imported Food Control Act 1998 and the person refuses or fails to comply with a notice to produce that information or documents.


Replaces section 29 of the Imported Food Control Act 1992

Customs

Description: A person who is required to keep records as required under section 28 of the Imported Food Control Act 1992 commits an offence if the Secretary gives a written notice to a person to produce the records to the Secretary and the person fails to comply with the notice.

Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Act 2018

“must not refuse or fail”

Inserts section 3(6A) into the Royal Commissions Act 1902


Description: A person who is served a notice to require the person to give information, or a statement, in writing to a person as a time place and manner specified in the notice must not refuse or fail to do so.


Road Vehicle Standards Act 2018


Section 43Compliance with disclosure notices

Transport

Description: A person commits an offence of strict liability if the person is given a disclosure notice and the person refuses or fails to comply with the notice.

Therapeutic Goods Amendment (2017 Measures No. 1) Act 2018


Inserts section 42DS into the Therapeutic Goods Act 1989Criminal offences for failing to comply with a notice etc...

Health

Description: A person commits an offence if the person apparently responsible for advertising or disseminating generic information about therapeutic goods and fails to comply with a notice under section 42DR to produce to the Secretary specified information or documents relating to the advertisement or dissemination.

Treasury Laws Amendment (2017 Measures No. 5) Act 2018


Inserts section 908BR into the Corporations Act 2001


Description: A person commits an office if a benchmark administrator licensee fails to comply with a request from a listed regulator to give access to the person’s books that relate to the person’s capacity as a licensee.

Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Act


Inserts section 61A into the Banking Act 1959Investigator may require production of books etc


Description: A person commits an offence if that person refuses or fails to comply with a written notice requiring the production of books, accounts or documents relevant to an investigator’s investigation.


Inserts 61G into the Banking Act 1959 Offences


Description: A person commits an offence if they refuse or fail to comply with a requirement to answer questions at an examination under Part VIII, Division 2 of the Banking Act 1959.


Inserts section 62AA into the Banking Act 1959Legal Professional Privilege


Description: A lawyer is not entitled to refuse with a requirement to give information or produce a book, account, or document when the person to whom the communication was made is a body corporate that is under administration or is being wound up.

Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Act 2018

“fail to comply”

Inserts section 1054A into the Corporations Act 2001Power to obtain information and documents


Description: A person must not fail to comply with a requirement made by the Australian Financial Complaints Authority to giving information or producing documents under a notice given under section 1054A(1).

Underwater Cultural Heritage Act 2018


Section 38Minister may ascertain location of protected underwater cultural heritage

Property

Description: A person who the Minister believes may have or have had, possession, custody, or control of an article that may be a protected underwater cultural heritage commits an offence for failing to comply with a written notice to produce information about the article.



Provisions that abrogate the privilege against self-incrimination



Therapeutic Goods Amendment (2017 Measures No. 1) Act 2018

“tend to incriminate”

Inserts section 42DU into the Therapeutic Goods Act 1989

Health

Description: A person is not excused from giving information or producing a document under section 42DR on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.

Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018

“is not excused”

Insert sections 62ZOI(5) into the Insurance Act 1973 Taxation and finance

Description: A person is not excused from complying with a requirement to give information or to produce books, accounts, or documents under section 62ZOI(1) on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.


Insert sections 179AI into the Life Insurance Act 1995 Taxation and finance

Description: A person is not excused from complying with a requirement to give information or to produce books, accounts, or documents under section 179AI(1) on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.

Social Services Legislation Amendment (Welfare Reform) Act 2018


Inserts section 159B into the A New Tax System (Family Assistance) (Administration) Act 1999

Grants and social services

Description: A person is not excused giving information, or producing a document or records, under Division 1 of Part 6 of the A New Tax System (Family Assistance) (Administration) Act 1999 on the ground that the information, or production of the document or records, might tend to incriminate the person or expose the person to a penalty.


Inserts section 122A into the Paid Parental Leave Act 2010


Description: A person is not excused from giving information or producing a document, under subdivision A of Division 2 of Part 4-1 of the Paid Parental Leave Act 2010 on the ground that the information, or production of the document might tend to incriminate the person or expose the person to a penalty.


Inserts section 197A into the Social Security (Administration) Act 1999



Description: A person is not excused from giving information or producing a document, under Division 1 of Part 5 of the Social Security (Administration) Act 1999 on the ground that the information or document might tend to incriminate the person or expose the person to a penalty.


Inserts section 347A into the Student Assistance Act 1973


Description: A person is not excused from giving information or producing a document under division 2 of Part 10 of the Student Assistance Act 1973 on the ground that the information or document might tend to incriminate the person or expose the person to a penalty.

Security of Critical Infrastructure Act 2018

“self-incrimination”

Section 40Self-incrimination


Description: An entity is not excused from giving information or producing a document or copy of a document under section 37 on the ground that to do so might tend to incriminate the entity or expose the entity to a penalty.

Foreign Influence Transparency Scheme Act 2018

“self-incrimination”



Description: A person is not excused from giving information or producing a document or a copy of a document under section 45 or 46 on the ground that to do so might tend to incriminate the person or expose the person to a penalty.

Underwater Cultural Heritage Act 2018


Section 38Minister may ascertain location of protected underwater cultural heritage

Property

Description: A person is not excused from giving information under section 38(2) on the ground that the information might tend to incriminate the person or expose the person to a penalty.

Imported Food Control Amendment Act 2018


Inserts section 32 into the Imported Food Control Act 1992

Customs

Description: A person is not excused from producing a record under Part 6 of the Imported Food Control Act 1992 on the ground that to do so might tend to incriminate the person or expose the person to a penalty.

Road Vehicle Standards Act 2018



Transport

Description: A person is not excused from giving information or evidence or producing a document as required by a disclosure notice on the ground that to do so might tend to incriminate the person or expose the person to a penalty.


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